(PC) Elias v. Kinross

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA KEIRON M. ELIAS, No. 2:17-cv-2106 WBS DB P 12 Plaintiff, ORDER VACATING FINDINGS AND RECOMMENDATIONS (ECF No. 54) 13 v. AND J. KINROSS, et al., AMENDED FINDINGS AND 15 Defendants. RECOMMENDATIONS 17 Defendants’ motion for summary judgment (ECF No. 40) is before the undersigned for further findings and recommendations. (See ECF No. 65.) Having reviewed the supplemental briefing filed by the parties, the undersigned will vacate the findings and recommendations filed on August 23, 2021. In the amended findings and recommendations that follow, the undersigned recommends the court grant in part and deny in part the defendants’ motion for summary judgment.

23 I. PROCEDURAL BACKGROUND 24 Plaintiff’s complaint stated cognizable claims under the Free Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”) based on the alleged confiscation of plaintiff’s bottled ink used for his religious exercise. (ECF No. 1.)

27 Pursuant to the court’s order of April 2, 2019 (ECF No. 23), this case has proceeded only on (1) a First Amendment free exercise claim against Correctional Officer Kinross, Lieutenant Gilliam, and Lieutenant Appleberry, and (2) a claim under RLUIPA against Warden Fox for prospective injunctive relief.

3 On March 11, 2021, defendants moved for summary judgment arguing the undisputed evidence showed they did not violate the RLUIPA or plaintiff’s free exercise rights under the First Amendment. (ECF No. 40.) Plaintiff opposed the motion for summary judgment on August 8, 2021. (ECF No. 52.) Defendants filed a reply. (ECF No. 53.)

7 On August 23, 2021, the undersigned issued findings and recommendations to grant the defendants’ motion for summary judgment based on a finding that plaintiff’s religious exercise had not been substantially burdened. (ECF No. 54 at 6-8.) On October 27, 2021, the district judge assigned to this case appointed limited-purpose counsel for plaintiff to file supplemental briefing in opposition to defendants’ motion for summary judgment and objecting to the findings and recommendations. (ECF No. 56.)

13 On March 20, 2022, plaintiff, through counsel, filed a supplemental opposition to defendants’ motion for summary judgment and the pending findings and recommendations. (ECF No. 60.) Defendants filed their supplemental reply on April 4, 2022. (ECF No. 61.) Plaintiff filed a pro se sur-reply on April 25, 2022. (ECF No. 64.)

17 On May 2, 2022, this matter was referred to the undersigned for further findings and recommendations addressing (1) whether plaintiff has raised a genuine issue of material fact as to whether defendants’ actions substantially burdened his religious beliefs, and (2) if so, whether plaintiff’s evidence raises a triable issue of fact as to either his RLUIPA or Free Exercise claims.

21 (ECF No. 65.)

22 II. LEGAL STANDARDS 23 Summary judgment is appropriate when the moving party shows there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In order to obtain summary judgment, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 27 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admission, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B).

6 “Where the non-moving party bears the burden of proof at trial, the moving party need only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B).

9 Summary judgment should be entered “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.”

12 Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323.

14 If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson, 447 U.S. at 248.

26 In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities Serv. Co., 391 U.S. 2 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 4 587 (citation and internal quotation marks omitted).

5 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls v. Central Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 U.S. at 289).

15 III. UNDISPUTED FACTS1 16 At all times relevant to this action, plaintiff was housed at California Medical Facility (“CMF”). On October 16, 2016, defendant Correctional Officer Kinross conducted a search of plaintiff’s cell and confiscated two bottles of colored ink. (See Supplemental Reply in Support of Defendants’ Statement of Undisputed Facts (ECF No. 61-1) (hereinafter “UF”) 8.) Officer Kinross issued plaintiff a rules violation report (“RVR”) designated log number 1153126 charging possessing tattoo paraphernalia in violation of Title 15 of the California Code of Regulations section 3006(c)(16). (UF 10.)

23 At the relevant time, CDCR prohibited tattoo paraphernalia. (UF 4.) The policy prohibiting tattooing and possession of related paraphernalia is codified in Department of Operations Manual (“DOM”) section 52080.5. (UF 4.) Tattooing and possession of related 1 Plaintiff’s supplemental opposition attempted to dispute UF 3, 4, 5, 6, and 8, but the evidence cited does not genuinely dispute the matters set forth. (See ECF No. 61-1 at 3.) These facts are undisputed as referenced herein.

1 paraphernalia is prohibited because the practice of tattooing poses significant public health risks to inmate population, including contributing to the spread of Hepatitis C or other diseases stemming from unsanitary practices. (UF 3.)

4 At the relevant time, inmates were allowed to possess ink pens and unbottled pen ink for writing and drawing. (UF 5, 44.) Plaintiff possessed two small bottles of ink for purposes related to his practice of Wiccanism. (UF 29, 33.) Plaintiff’s religious practices require him to write or draw Sacred Pentacles of Solomon using a feather dipped in colored ink. (UF 31, 33.)

8 Plaintiff had not requested a special accommodation to possess ink in bottles prior to Officer Kinross’ ink confiscation on October 16, 2016. (UF 21.) Separately, eye drop bottles and ink pens were allowable items for purchase. (UF 44.) When a quantity of ink possessed by an inmate amounts to tattoo paraphernalia, then it is deemed contraband. (UF 5.)

12 Plaintiff appeared for a hearing pertaining to RVR log number 1153126 on November 6, 2016. (UF 11.) Defendant Gilliam presided over the RVR hearing as the senior hearing officer.

14 (UF 12.) Plaintiff presented a defense that his bottled ink was not tattoo paraphernalia, but rather, pen ink blown into eye drop bottles used for his religious purposes. (UF 13.) Defendant Gilliam found plaintiff guilty of possessing tattoo paraphernalia based on the written RVR statement and plaintiff’s admission he possessed the bottles, notwithstanding his explanation he used the ink for his religious purposes and not for tattooing. (UF 14-15.)

19 Plaintiff submitted appeal log number CMF-M-16-03389, in which he grieved that the ink confiscation and adjudication of RVR log number 1153126 were improper. (UF 16.) Defendant Appleberry conducted the second-level review of appeal log number CMF-M-16-03389. (UF 17.)

22 Appleberry interviewed plaintiff and staff, including the chaplain, and denied plaintiff’s appeal, thereby affirming the guilty finding for RVR log number 1153126. (UF 18-20.)

24 IV. DISCUSSION 25 A. FREE EXERCISE CLAUSE 26 1. Applicable Standards 27 “The First Amendment, applicable to the States by reason of the Fourteenth Amendment...

28 prohibits government from making a law ‘prohibiting the free exercise (of religion).’” Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam) (citation omitted). In order to establish a cause of action under the Free Exercise Clause, a plaintiff must show that a restriction substantially burdened the practice of his religion by preventing him from engaging in conduct he sincerely believes is consistent with his faith without any justification reasonably related to interests concerning the care of committed persons. Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008).

7 “‘When a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.’” Shakur, 514 F.3d at 884 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). In Turner, the Supreme Court articulated four factors to consider in determining whether a prison regulation is valid: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether there are “alternative means of exercising the right that remain open to prison inmates”; (3) whether “accommodation of the asserted constitutional right” will “impact...guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there is an “absence of ready alternatives” versus the “existence of obvious, easy alternatives.” Shakur, 514 F.3d at 882 (citing Turner, 482 U.S. at 89-90).

17 2. Disputes of Material Fact 18 Defendants do not dispute plaintiff’s evidence that he practices Wiccanism or the sincerity of his belief that using a feather and ink for writing and drawing is religious exercise consistent with his practice. Instead, defendants argue the policy prohibiting possession of ink-filled bottles did not substantially burden plaintiff’s religious practice because plaintiff was allowed to possess and use ink other than bottled ink. (ECF No. 40-2 at 6-7.) Defendants argue plaintiff fails to put forth evidence demonstrating “why ink less than what could fit within the confiscated bottles” was insufficient to allow plaintiff “to practice his Wicca Faith.” (Id.) Defendants argue plaintiff was not foreclosed from his religious exercise because he could have used ink for his religious practice and avoided violating CDCR policy by only “possess[ing] ink not reasonably likely to be used for tattoo purposes.” (Id.) //// 1 The policy at issue prohibited “[t]attooing or possession of tattoo paraphernalia” and did not itself set forth what constitutes a violation. (ECF No. 40-4 at 35.) Under some of defendants’ evidence, only bottles filled “beyond a certain volume” would be found to violate the policy. (See ECF No. 40-4 at 56 (Appleberry Decl. ¶¶ 6, 10-11).) Under other evidence, however, “bottled ink is deemed to be tattoo paraphernalia and, therefore, contraband.” (ECF No. 40-4 at 29 (Kinross Decl. ¶ 6; see also ¶ 7 “I am unaware of any exceptions”).)

7 It is currently undisputed that plaintiff sincerely believed his religious practice required him to write or draw using a feather and ink rather than ink pens. (UF 31, 33.) When his bottles of ink were confiscated as contraband, plaintiff became unable to continue his religious practice of using an ink-dipped feather. (UF 4, 5, 8.) This burden was more than a temporary inconvenience because it was not resolved after plaintiff presented evidence that he possessed the ink in bottles only for his religious purposes. (UF 13-15.) Although defendants argue plaintiff could have engaged in the religious exercise at issue without violating CDCR’s anti-tattoo policy, on the record evidence, the court could only speculate as to how plaintiff might have used an ink-dipped feather without violating the policy. A triable issue of fact exists as to whether plaintiff’s religious exercise was substantially burdened. The next inquiry is whether the prohibiting policy reasonably relates to a legitimate penological interest. See Turner, 482 U.S. at 89.

18 Considering the first Turner factor, a rational nexus exists between prohibiting plaintiff from possessing bottled ink and CDCR’s legitimate health and security concerns. The practice of tattooing poses significant public health risks to inmate population, including contributing to the spread of Hepatitis C or other diseases stemming from unsanitary practices. (UF 3.) It is undisputed that bottled ink is problematic because of its possible ready use for tattooing and the difficulty in distinguishing between honest and pretextual explanations as to the nature and purpose of bottled ink possessed by an inmate. (UF 6; see also ECF No. 40-4 at 29 (Kinross Decl., ¶ 7).)2 The first Turner factor weighs in favor of defendants.

2 Plaintiff submitted evidence that an experienced tattoo artist would not use bottled pen ink of the type confiscated from plaintiff’s cell for tattooing because of toxicity and because it would not achieve a lasting tattoo. (ECF No. 51 at 33-34, 38-39.) Nevertheless, a rational nexus exists between the prohibition of all bottled ink and CDCR’s legitimate penological interests.

1 The second Turner factor considers whether the plaintiff “has ‘alternative means by which he can practice his religion’ or is ‘denied all means of religious expression.’” Shakur, 514 F.3d at 3 886 (quoting Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993)) (civil detainee had “numerous other means of practicing his religion” where he could keep a copy of the Qur’an in his cell, along with a prayer rug and up to seven religious items provided they did not pose a threat to the safe, secure, and orderly operation of the institution). There is no evidence plaintiff was foreclosed from pursuing any other means of practicing his faith. This second Turner factor weighs in favor of defendants.

9 The third Turner factor considers the impact accommodation would have on staff and other inmates, as well as the allocation of institutional resources generally. Defendants do not specifically address this factor. Defendants note plaintiff had not requested an accommodation for his religious practice. (ECF No 40-2 at 11.) The undisputed facts do not indicate such a request would have been granted. The court recognizes the substantial undertaking involved in running a secure facility and gives deference to the institution’s assessment of the burden on operations. See Shakur, 514 F.3d at 887. Bottled ink is problematic because of its possible ready use for tattooing and the difficulty in distinguishing between honest and pretextual explanations for its use. But the record is devoid of evidentiary support for the court to conclude an accommodation would be disruptive or present more than a de minimis burden. This factor does not weigh in defendants’ favor.

20 For the final Turner factor, the court considers whether there are obvious, easy alternatives indicating the institution’s response is exaggerated. It is plaintiff’s burden to show there are obvious, easy alternatives to the restriction on what religious items he was allowed to possess.

23 See O’Lone v. Estate of Shabazz, 482 U.S. 342, 350 (1987); Mauro v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999). Because plaintiff has not identified any obvious, easy alternatives, this factor weighs in favor of defendants.

26 Construing the evidence in the light most favorable to plaintiff, three out of four Turner factors weigh in favor of defendants. However, the record evidence does not allow the court to determine whether an accommodation would place more than a de minimis burden on the institution. If an accommodation would not be overly disruptive or present more than a de minimis burden, then the policy likely does not reasonably relate to the legitimate penological interests addressed. Unresolved questions of material fact prevent entry of summary judgment.

4 See Shakur, 514 F.3d at 887; see also Hunafa v. Murphy, 907 F.2d 46, 48 (7th Cir. 1990) (finding balance “too close for summary judgment to be proper” based upon “brief affidavit… that summarizes the prison’s concerns but makes no attempt to estimate their magnitude in relation to the plaintiff’s religious claims”).

8 3. Personal Participation of the Individual Defendants 9 Finding triable issues of fact as to whether plaintiff’s religious exercise was substantially burdened and whether the policy at issue was reasonably related to legitimate penological interests, the court considers the defendants’ personal involvement for the claimed First Amendment violation. Plaintiff must demonstrate that each named defendant personally participated in the deprivation of his First Amendment rights. See Ashcroft v. Iqbal, 556 U.S. 14 623, 676-77 (2009).

15 Defendants argue Kinross confiscated the bottles of ink and issued the RVR pursuant to CDCR’s reasonable policies and procedures. (ECF No. 40-2 at 8.) Defendants argue Gilliam, in finding plaintiff guilty of possessing tattoo paraphernalia as charged in the RVR, merely enforced these established policies and procedures. (Id. at 8.) As set forth, defendants failed to show they acted pursuant to a constitutionally valid policy. Material disputes of fact prevent the entry of summary judgment in favor of defendants Kinross and Gilliam.

21 Defendants assert Appleberry was not personally involved in the alleged First Amendment violation because his relevant conduct was limited to his review and decision in appeal log number CMF-M-16-03389. (ECF No. 40-2 at 9-10.) Plaintiff responds that Appleberry was personally involved because he affirmed the RVR for which plaintiff was disciplined and was “a necessary part of the chain” that “result[ed] in [plaintiff] having to be transferred to a more restrictive prison setting without the college program he was involved with, causing emotional damage to him as stated in his deposition and declarations.” (ECF No. 60 at 15.)

28 //// 1 A prison official’s mere administrative review of a prisoner’s appeal does not generally serve as the basis for the official’s liability under 42 U.S.C. § 1983. See George v. Smith, 507 3 F.3d 605, 609-10 (7th Cir. 2007) (“Ruling against a prisoner on an administrative complaint does not cause or contribute to the violation.”); Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (prison official whose only role involved the denial of a prisoner’s administrative grievance cannot be held liable under § 1983), cert. denied, 530 U.S. 1264 (2000). Liability may be found if there is an ongoing constitutional violation and the prison official responding to an administrative appeal had the authority and opportunity to prevent the ongoing violation yet failed to prevent it.

9 See Taylor v. List, 880 F.2d at 1045 (supervisory official liable under § 1983 if he or she knew of a violation and failed to act to prevent it). On the other hand, “merely denying a grievance without some decision-making authority or ability to resolve the underlying issue grieved is not enough to establish personal participation.” Jackson v. State of Nev., No. 2:16-cv-0995-APG- NJK, 2019 WL 6499106, at *7 (D. Nev. Dec. 3, 2019); accord Colwell v. Bannister, 763 F.3d 14 1060, 1065 (9th Cir. 2014) (reasonable jury could find doctor personally participated in refusing treatment through denial of inmate’s grievance based on administrative policy); Snow v. McDaniel, 681 F.3d 978, 989 (9th Cir. 2012) (review of grievance was sufficient to demonstrate warden and associate warden were aware of inmate’s serious medical condition and failed to act to prevent further harm), overruled on other grounds in Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014).

20 Appleberry, who was a correctional lieutenant, determined the RVR was “properly adjudicated” and “staff complied with due process guidelines.” (ECF No. 40-4 at 55, 57 (Appleberry Decl. ¶¶ 2, 10).) As part of the review, Appleberry interviewed the Chaplain, who confirmed “inmates are not allowed to possess ink-filled bottles” and plaintiff “had not obtained approval to possess the confiscated ink.” (Id. at 58.) There is no evidence Appleberry held decision-making authority regarding the prohibition of plaintiff’s ink-filled bottles as tattoo paraphernalia or their designation as contraband. Plaintiff presents no evidence from which a reasonable jury could conclude that Appleberry’s investigation and denial of the administrative appeal proximately caused the alleged First Amendment violation. In this instance, Appleberry’s conduct in investigating and denying the administrative appeal does not raise a question of material fact as to his personal participation in the claimed First Amendment violation. See, e.g., George, 507 F.3d at 609-10. The undersigned will recommend the court grant summary judgment only in Appleberry’s favor on plaintiff’s First Amendment Free Exercise claim.

5 B. RLUIPA 6 The RLUIPA provides “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, ... unless the government demonstrates that imposition of the burden on that person ... is in furtherance of a compelling governmental interest ... and is the least restrictive means of furthering that ... interest.” 42 U.S.C. § 2000cc-1(a). RLUIPA defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7).

12 Exercise of religion protected under RLUIPA includes the performance of physical acts such as assembling with others for a worship service or participating in sacramental use of bread and wine. Cutter v. Wilkinson, 544 U.S. 709, 720 (2005). A court reviewing a claim under the RLUIPA “begin[s] by identifying the ‘religious exercise’ allegedly impinged upon.” Greene v. Solano Cty. Jail, 513 F.3d 982, 987 (9th Cir. 2008). The “initial RLUIPA step requires a narrow inquiry focused on (1) the specific religious practice at issue and (2) the specific practitioner.”

18 Johnson v. Baker, 23 F.4th 1209, 1215 (9th Cir. 2022).

19 Defendants do not dispute the sincerity of plaintiff’s subjective intent to use the confiscated bottles of ink for his religious exercise. (UF 29, 31, 33, 41.) Therefore, the court considers whether the prison regulation at issue substantially burdens the religious exercise at issue. Johnson, 23 F.4th at 1215. Courts “do not take a narrow view of what constitutes a ‘substantial burden.’” Id. A substantial burden on religious exercise imposes a significantly great restriction or onus upon such exercise. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir. 2004)). A regulation that outright bans religious exercise is a substantial burden, but lesser restrictions may suffice. See Johnson, 23 F.4th at 1215 (regulation limiting the use of scented oil //// during prayer to a single prayer out of 35 prayers per week substantially burdened prisoner’s religious exercise).

3 Plaintiff argues the CDCR regulation at issue prevents him “from possessing colored ink to write out what was required” during his religious exercise. (ECF No. 60 at 12.) Defendants argue the policy did not substantially burden plaintiff’s religious exercise because he could have used “ink in some amount less than what could fit within the confiscated bottles” without violating the policy. (ECF No. 40-2 at 12; ECF No. 61 at 2.) It remains unclear how plaintiff might have used an ink-dipped feather as required for his religious exercise without violating CDCR’s anti-tattoo policy. Plaintiff makes a prima facie case that the regulation at issue substantially burdens his religious exercise at issue under the RLUIPA.

11 The burden shifts to defendants to show the regulation is “(1) in furtherance of a compelling governmental interest and (2) the least restrictive means of serving that interest.” 13 Johnson, 23 F.4th at 1216 (citing 42 U.S.C. § 2000cc-1(a) and Holt v. Hobbs, 574 U.S. 352, 362 (2015)). “[C]ourts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries.” Cutter, 544 U.S. at 720. RLUIPA does not elevate accommodation of religious observances over an institution’s need to maintain order and safety and an accommodation must not override other significant interests. Id. at 722.

18 Preventing public health risks that flow from inmate tattooing is a compelling governmental interest furthered by CDCR’s anti-tattoo policy. (ECF No. 40-4 at 29 (Kinross Decl., ¶ 8).) Bottled ink is problematic because of its possible ready use for tattooing. (ECF No. 40-4 at 29 (Kinross Decl., ¶ 7).) However, defendants make no attempt to show application of the regulation at issue, with no exceptions for plaintiff’s religious exercise, is the least restrictive means of serving that interest. Finding no record evidence to support such a conclusion, the undersigned recommends the motion for summary judgment be denied as to the RLUIPA claim against Warden Fox for prospective injunctive relief.

26 C. QUALIFIED IMMUNITY 27 Qualified immunity shields government officials from monetary damages unless their conduct violated “clearly established statutory or constitutional rights of which a reasonable person would have known.” Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018). “In evaluating a grant of qualified immunity, a court considers whether (1) the state actor’s conduct violated a constitutional right and (2) the right was clearly established at the time of the alleged misconduct.” Gordon v. County of Orange, 6 F.4th 961, 967-68 (9th Cir. 2021) (citing Saucier v. Katz, 533 U.S. 194, 200-01 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 6 (2009)). “[I]f the answer to either [question] is ‘no,’ then the state actor cannot be held liable for damages.” Id. at 968 (citation omitted).

8 Under the first prong of the qualified immunity analysis, triable facts exist regarding whether the conduct of defendant Kinross and defendant Gilliam violated plaintiff’s First Amendment rights. As to the second prong, defendants summarily conclude the evidence establishes no reasonable person in these defendants’ positions would construe their conduct as having violating plaintiff’s free exercise rights. (ECF No. 40-2 at 13.)

13 It was clearly established prior to 2018 that a prison official violates the Free Exercise Clause by substantially burdening an inmate’s religious exercise without a valid basis that is reasonably related to legitimate penological interests. See Shakur, 514 F.3d at 883-84; see also Rouser v White, 630 F. Supp. 2d 1165, 1201-02 (E.D. Cal. 2009) (denying qualified immunity from Wiccan inmate’s free exercise claim for a sweat lodge where defendants produced inadequate evidence showing their conduct was reasonable under the Turner factors). Viewing the facts in the light most favorable to plaintiff, a fact finder could determine defendant Kinross and defendant Gilliam violated plaintiff’s clearly established free rights. Defendants are not entitled to qualified immunity on plaintiff’s free exercise claim at this stage.

22 In addition, qualified immunity “does not bar actions for declaratory or injunctive relief.”

23 Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 527 (9th Cir. 1989) (citing Harlow v. Fitzgerald, 457 U.S. 800, 806 (1982).) This includes the RLUIPA claim against Warden Fox for prospective injunctive relief.

26 VI. CONCLUSION AND RECOMMENDATION 27 In accordance with the above, IT IS HEREBY ORDERED that the findings and recommendations filed on August 23, 2021 (ECF No. 54) are VACATED.

1 In addition, IT IS RECOMMENDED that defendants’ motion for summary judgment | (ECF No. 40) be granted in part and denied in part, as follows: GRANTED as to the First | Amendment claim against defendant Appleberry; DENIED as to the First Amendment claims | against Kinross and Gilliam; and DENIED as to the RLUIPA claim against Warden Fox for || prospective injunctive relief.

6 These findings and recommendations are submitted to the United States District Judge | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) | days after being served with these findings and recommendations, any party may file written | objections with the court and serve a copy on all parties. Such a document should be captioned | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the | objections shall be filed and served within seven (7) days after service of the objections. The | parties are advised that failure to file objections within the specified time may waive the right to | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991).

14 | Dated: July 11, 2022 elia2106.msj.2 BORAH BARNES UNITED STATES MAGISTRATE JUDGE